Citation Nr: 21027936 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-38 691 DATE: May 7, 2021 REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a heart disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. Entitlement to a rating in excess of 10 percent for recurrent acute sinusitis is remanded. Entitlement to a rating in excess of 10 percent for atrophic rhinitis is remanded. Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the cervical spine is remanded. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is remanded. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease (DJD) with limited flexion is remanded. Entitlement to a rating in excess of 10 percent for left knee DJD with limited flexion is remanded. Entitlement to a rating in excess of 20 percent for left ankle DJD with limited motion is remanded. REASONS FOR REMAND The Veteran had active service from February 1975 to February 1977 and January 1988 to November 1994. These matters are before the Board of Veterans' Appeals(Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video conference hearing. A transcript of his testimony is of record. These matters were last before the Board in March 2020, when they were remanded for additional development. 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disabilities, is remanded. 2. Entitlement to service connection for a heart disability, to include as secondary to service-connected disabilities, is remanded. 3. Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disabilities, is remanded. 4. Entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. 5. Entitlement to a rating in excess of 10 percent for recurrent acute sinusitis is remanded. 6. Entitlement to a rating in excess of 10 percent for atrophic rhinitis is remanded. 7. Entitlement to a rating in excess of 20 percent for DDD of the cervical spine is remanded. 8. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is remanded. 9. Entitlement to a rating in excess of 10 percent for right knee DJD with limited flexion is remanded. 10. Entitlement to a rating in excess of 10 percent for left knee DJD with limited flexion is remanded. 11. Entitlement to a rating in excess of 20 percent for left ankle DJD with limited motion is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. The March 2020 remand requested opinions addressing whether the Veteran's sleep apnea, heart disability, diabetes, and hypertension were caused or aggravated by his service-connected disabilities. It also requested an opinion addressing whether his obesity was an "intermediate step" between his service-connected disabilities and his claimed disabilities. While an addendum opinion was obtained in August 2020, it is not fully responsive to the remand directives. Regarding sleep apnea, the clinician's rationale was conclusory and did not explain the significance of the Veteran's nasal obstruction or status post septoplasty and bilateral inferior turbinate reduction. Regarding his heart disability, diabetes, and hypertension, the clinician's rationale was not supported by a sufficient rationale. Regarding the Veteran's claim that his obesity was an intermediate step for his claimed disabilities, while the clinician seemed to suggest that the Veteran's service connected disabilities aggravated his obesity and that his obesity was a factor in the development of his claimed disabilities, the clinician did not opined whether the claimed disabilities would not have occurred but for obesity aggravated by the service connected disabilities. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The March 2020 remand also requested that an October 26, 2015 VistA Imaging record that was referenced in a January 24, 2016 VA entry be obtained. It does not appear that the record has been associated with the claims file. Accordingly, the record must be obtained on remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Finally, the evidence indicates there are additional outstanding VA treatment records. A VA treatment record from March 3, 2020 indicates that the Veteran was to return for a follow up appointment in November 2020. VA treatment records subsequent to April 21, 2020 have not been obtained. Additionally, a VA treatment record from September 22, 2009 notes that a diagnostic sleep study had been scanned into VistA Imaging. It does not appear that the referenced record has been associated with the claims file. A remand to obtain the outstanding records is required. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, request any relevant records identified. In addition, obtain updated VA treatment records dated since April 21, 2020 as well as the October 26, 2015 VistA Imaging record that was referenced in the January 24, 2016 and the sleep study referenced in the September 22, 2009 VA record entry. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above is completed to the extent possible, forward the claims file to a VA clinician to obtain an addendum opinion regarding the Veteran's claims for hypertension, sleep apnea, diabetes, and heart disability. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should opine: (a.) Whether it is at least as likely as not (50 percent probability or greater) that obstructive sleep apnea was caused by the Veteran's service-connected disabilities. (b.) If not caused by the service-connected disabilities, is it at least as likely as not that the obstructive sleep apnea is worsened beyond natural progression (aggravated) by his service-connected disabilities? If the clinician finds that the Veteran's obstructive sleep apnea was aggravated by his service-connected disabilities, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the obstructive sleep apnea. The clinician should address the treatise evidence cited by the August 2020 clinician notating that the craniofacial or upper airway soft tissue abnormalities were important risk factors for the development of sleep apnea and reconcile that risk factor with the Veteran's history of septoplasty and bilateral inferior turbinate reduction. (c.) Whether it is at least as likely as not that the hypertension, diabetes and heart disability were caused by the Veteran's service-connected orthopedic and/or neurological disabilities. (d.) If not caused by service or the service-connected orthopedic and/or neurological disabilities, is it at least as likely as not that the Veteran's hypertension, diabetes, and heart disability were worsened beyond natural progression (aggravated) by his service-connected orthopedic and/or neurological disabilities? If the clinician finds that any of these conditions were aggravated by his service-connected orthopedic and/or neurological disabilities, the clinician should attempt to quantify the level of aggravation beyond the baseline level of the disabilities. (e.) If the claimed hypertension, sleep apnea, diabetes and/or heart disability were not directly caused or aggravated by the Veteran's service-connected disabilities, the clinician should address whether it is at least as likely as not that the Veteran's service-connected disabilities caused him to become obese or aggravated his obesity. The clinician should address the August 2020 VA clinician's statement that the Veteran's service-connected disabilities did not "severely affect his abilities to perform physical activity" and that his service connected disabilities "may have contributed a small part" but his obesity was "mostly related to his diet." (f.) State whether it is at least as likely as not the Veteran's obesity or the aggravation of his obesity as a result of the service-connected disability was a substantial factor in causing his hypertension, sleep apnea, diabetes and/or heart disability. (g.) State whether it is at least as likely as not the Veteran's hypertension, sleep apnea, diabetes and/or heart disability would not have occurred but for his obesity caused or aggravated by his service-connected disabilities. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.